Environmental Planning and Assessment Act 1979 No 203
Historical version for 26 October 2009 to 7 January 2010 (accessed 5 August 2020 at 01:32) Current version
Part 6 Division 3
Division 3 Orders of the Court
122   Definitions
In this Division:
(a)  a reference to a breach of this Act is a reference to:
(i)  a contravention of or failure to comply with this Act, and
(ii)  a threatened or an apprehended contravention of or a threatened or apprehended failure to comply with this Act, and
(b)  a reference to this Act includes a reference to the following:
(i)  the regulations,
(ii)  an environmental planning instrument,
(iii)  a consent granted under this Act, including a condition subject to which a consent is granted,
(iv)  a complying development certificate, including a condition subject to which a complying development certificate is granted,
(v)  an order under Division 2A,
(vi)  a planning agreement referred to in section 93F.
123   Restraint etc of breaches of this Act
(1)  Any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach.
(2)  Proceedings under this section may be brought by a person on his or her own behalf or on behalf of himself or herself and on behalf of other persons (with their consent), or a body corporate or unincorporated (with the consent of its committee or other controlling or governing body), having like or common interests in those proceedings.
(3)  Any person on whose behalf proceedings are brought is entitled to contribute to or provide for the payment of the legal costs and expenses incurred by the person bringing the proceedings.
(4)    (Repealed)
124   Orders of the Court
(1)  Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach.
(2)  Without limiting the powers of the Court under subsection (1), an order made under that subsection may:
(a)  where the breach of this Act comprises a use of any building, work or land—restrain that use,
(b)  where the breach of this Act comprises the erection of a building or the carrying out of a work—require the demolition or removal of that building or work, or
(c)  where the breach of this Act has the effect of altering the condition or state of any building, work or land—require the reinstatement, so far as is practicable, of that building, work or land to the condition or state the building, work or land was in immediately before the breach was committed.
(3)  Where a breach of this Act would not have been committed but for the failure to obtain a consent under Part 4, the Court, upon application being made by the defendant, may:
(a)  adjourn the proceedings to enable a development application to be made under Part 4 to obtain that consent, and
(b)  in its discretion, by interlocutory order, restrain the continuance of the commission of the breach while the proceedings are adjourned.
(4)  The functions of the Court under this Division are in addition to and not in derogation from any other functions of the Court.
(5)  Nothing in this section affects the provisions of Division 3 of Part 3 of the Land and Environment Court Act 1979.
124AA   Evidence of use of premises as backpackers’ hostel
(1)  This section applies to proceedings before the Court under this Act to remedy or restrain a breach of this Act in relation to the use of premises as a backpackers’ hostel.
(2)  In any proceedings to which this section applies, the Court may rely on circumstantial evidence to find that particular premises are used as a backpackers’ hostel.
Note.
 Examples of circumstantial evidence include (but are not limited to) the following:
(a)  evidence relating to persons entering and leaving the premises (including the depositing of luggage) that is consistent with the use of the premises for a backpackers’ hostel,
(b)  evidence of the premises being advertised expressly or implicitly for the purposes of a backpackers’ hostel (including advertisements on or in the premises, newspapers, directories or the Internet),
(c)  evidence relating to internal and external signs and notices at the premises (including price lists, notices to occupants and offers of services) that is consistent with the use of the premises for a backpackers’ hostel,
(d)  evidence of the layout of rooms, and the number and arrangement of beds, at the premises that is consistent with the use of the premises for a backpackers’ hostel.
124AB   Proceedings relating to use of premises as brothel
(1) Application This section applies to proceedings before the Court to remedy or restrain a breach of this Act in relation to the use of premises as a brothel. Subsections (5) and (6) extend to any such proceedings in relation to all brothels within the meaning of the Restricted Premises Act 1943.
(2) Adjournments to obtain consent only in exceptional circumstances The Court may not adjourn the proceedings under section 124 (3) unless it is of the opinion that the adjournment is justified because of the exceptional circumstances of the case. The fact that it is intended to lodge a development application, or that a development application has been made, is not by itself an exceptional circumstance.
(3) Time for making development application limited to 10 days If the Court adjourns the proceedings under section 124 (3), the proceedings must be brought back before the Court if a development application is not made within 10 working days of the adjournment.
(4) Only one adjournment The Court may make only one adjournment under section 124 (3) of particular proceedings.
(5) Finding may be made on circumstantial evidence In any proceedings:
(a)  the Court may rely on circumstantial evidence to find that particular premises are used as a brothel, and
(b)  the Court may make such a finding without any direct evidence that the particular premises are used as a brothel.
(6)  However, the presence in any premises of articles or equipment that facilitate or encourage safe sex practices does not of itself constitute evidence of any kind that the premises are used as a brothel.
Note.
 Examples of circumstantial evidence include (but are not limited to) the following:
(a)  evidence relating to persons entering and leaving the premises (including number, gender and frequency) that is consistent with the use of the premises for prostitution,
(b)  evidence of appointments with persons at the premises for the purposes of prostitution that are made through the use of telephone numbers or other contact details that are publicly advertised,
(c)  evidence of information in books and accounts that is consistent with the use of the premises for prostitution,
(d)  evidence of the arrangement of, or other matters relating to, the premises, or the furniture, equipment or articles in the premises, that is consistent with the use of the premises for prostitution.
124A   Special provision where development consent tainted by corruption
(1)  For the purposes of this section, a decision of a consent authority to grant or modify a development consent is tainted by corrupt conduct:
(a)  if the Independent Commission Against Corruption, in a report referred to in section 74C of the Independent Commission Against Corruption Act 1988, recommends that consideration be given to the suspension of the development consent or modification with a view to its revocation because of serious corrupt conduct by the consent authority or by a councillor or other officer or member of staff of the consent authority in connection with the grant of the consent or modification, or
(b)  if criminal proceedings are instituted against the consent authority or against a councillor or other officer or member of staff of the consent authority for serious corrupt conduct in connection with the grant of the consent or modification, or
(c)  if the consent authority, councillor or other officer or member of staff makes an admission of such serious corrupt conduct.
(2)  A breach of this Act that may be remedied or restrained in proceedings instituted under this Division includes a decision of a consent authority to grant or modify a development consent that is tainted by corrupt conduct.
(3)  If a decision of a consent authority to grant or modify a development consent is tainted by corrupt conduct, the Minister may, without prior notice or inquiry, suspend the decision pending the institution and determination of proceedings under this Division in respect of the decision. The Minister is to give the consent authority and the applicant for the grant or modification of the development consent written notice of the suspension as soon as practicable after it is imposed.
(4)  A suspension imposed by the Minister may be lifted by the Minister at any time and is taken to be lifted if the proceedings concerned are not instituted within 6 months after the suspension is imposed.
(5)  The Court may, in proceedings to which this section applies, suspend the decision of a consent authority to grant or modify a development consent pending the determination of the proceedings. The Court may lift a suspension imposed by the Minister under this section.
(6)  The Court may, in proceedings to which this section applies, revoke the decision of a consent authority to grant or modify a development consent if:
(a)  the decision is tainted by corrupt conduct, and
(b)  the Court is satisfied that the revocation of the decision will not significantly disadvantage any person affected by the decision who was not a party to the corrupt conduct.
The Court retains its discretion in proceedings to which this section applies as to whether to revoke a decision that is tainted by corrupt conduct.
(7)  A development consent for the erection of a building, the carrying out of a work or the demolition of a building or work (or a modification of any such consent) is not to be suspended or revoked under this section if the building, work or demolition authorised by the consent (or by the modification) has been substantially commenced.
(8)  Section 101 does not apply to proceedings to which this section applies.
(9)  Compensation is not payable by the Minister or the State for any loss suffered by a person because:
(a)  a decision is suspended under this section (whether or not the Court decides to revoke the decision), or
(b)  a decision is revoked under this section.
(10)  This section applies:
(a)  to decisions made by a consent authority before or after the commencement of this section, and
(b)  to serious corrupt conduct, and to criminal proceedings instituted or admissions made in respect of serious corrupt conduct, before or after that commencement.
(11)  In this section:
serious corrupt conduct means corrupt conduct (within the meaning of the Independent Commission Against Corruption Act 1988) that may constitute a serious indictable offence.